Blog Post

Power To The People: ISPs, Media, Users Face Off In EU Legal Triple-Whammy

Consumers in Europe may be feeling the smarting bite of the economic winter settling in around us, but when it comes to internet and mobile usage, there is some small relief coming: a series of legal actions point to host of new rights for private individuals. UK regulator Ofcom has now outlined rules for how ISPs need to communicate broadband speeds to consumers; the European Commission said it is preparing to enforce a Citizens’ Rights directive for communications services in 16 member countries that have yet to implement them; and a European court ruled that ISPs cannot use filters to monitor whether and how a user consumes unlicensed content.

In the UK, Ofcom has laid out areas that ISPs need to address to make it clearer to consumers how internet traffic is managed on those ISPs’ networks.

They included the requirement that ISPs will need to provide details to users on actual average network speeds, rather than peak speeds at optimal times; disclosure to users about when broadband speed may get intentionally reudced, for example, when a subscriber is using peer-to-peer downloading software (eg, BitTorrent); disclosure about any specific services that might get blocked.

In other words, the kind of information that ISPs should have been giving consumers for years already, but have not.

Although this sounds like bad news for ISPs, I actually think this can only be a good thing: some consumers will not pay attention to these details anyway, but those who do will have more information to make the right choice not about about which internet provider they choose to use, but also clarity on what kinds of services might be more difficult to use, and why.

ISPs should probably get on the case with this so that they can manage their messages well, before the regulator, probably more unflatteringly, does it for them: Ofcom says if ISPs do not start to disclose this information themselves, it will use its powers to “introduce a minimum level of consumer information under the revised European framework” that the UK accepted into law in May 2011.

Interestingly that very same European framework came up in a separate matter this week, when the European Commission named and shamed the 16 member countries that had yet to implement the new framework.

That framework (more details here) covers not only the kind of consumer information on broadband usage that Ofcom is now tackling in the UK, but also requirements for how users can switch mobile operators more quickly and easily, more requirements about safeguarding consumer privacy and details about growing infrastructure, including refarming radio spectrum to use it for wireless services.

The Commission says that it has now embarked on legal proceedings against 16 countries — Austria, Belgium, Bulgaria, Cyprus, the Czech Republic, France, Germany, Greece, Hungary, Italy, The Netherlands, Poland, Portugal, Romania, Slovenia and Spain — that have to implement the rules, and will likely fine them for being late, although that can take years to work through the system so is perhaps not too much of a threat to those countries that have yet to do anything.

That list is a mixed bag: it includes both countries that you could classify as “mature” markets for broadband as well as those that are still at an earlier part of their growth and — in the case of some such as Greece, Italy, Portugal and Spain — have much more significant economic issues to worry about at the moment. Incidentally, the seven that have approved that framework include the UK, and those European rules are now providing the backbone to the regulations that Ofcom has now set out for UK ISPs.

In truth, it’s not all that surprising to see both France and Belgium on that list. For one, France has enacted some of the most stringent rules in Europe around the prosecution of private users based on their consumption of unlicensed media content, and is actually seeking to extend them. The so-called “Hadopi” law in France is a three-strikes-style system aimed at those who download illegal media files (eg free music or films that have not been licensed by their rights owners), and just the other day French president Nicolas Sarkozy said that he would like those rules extended to users who also stream such content.

Belgium, meanwhile, has been at the center of a heated legal case that people have been likening to the SOPA directives currently making their way through legal hoops in the U.S.

The specific case in question had to do with Belgian ISP Scarlet, which had been sued by Belgian content rights-holding group Sabam for allowing its subscribers to download unlicensed content on its network.

The case has been making its way through the courts for years already, but this now seems to be the definitive ruling: Sabam wanted Scarlet to implement a filtering system to block illegal content; but the court ruled that this would interfere with Scarlet’s business and also violates consumers’ privacy, based on the European directives that are being applied in the UK right now, and are being enforced by the Commission to implement elsewhere.

That seems to put an end to one way for rights holders to go after those who consume unlicensed, free content, but it doesn’t end the discussion altogether. According to the New York Times, the ruling does not affect whether ISPs can outright block certain sites on their network (as long as they tell consumers what they are) — as BT is currently being requested to do over the site Pirate Bay — or for specific violators to be cut off from their internet services (a la Hadopi).

That leaves the door wide open for years more of struggles between consumers, rights owners and broadband providers over the best way of making sure that when a song gets heard, or a film gets downloaded, someone, somewhere gets what’s coming to them.